Reprinted from 
By Baker McClanahan, Virginia Lawyers Weekly
Even though a defendant won her auto accident case based on contributory negligence, she still had to pay the plaintiff for having a medical expert testify at trial, an Alexandria Circuit judge has ruled.
The award of costs was based on the defendant’s action during discovery. The defendant denied requests for admission “without reasonable ground to believe she might prevail on the matter,” the judge ruled.
Because, the, plaintiff then had to prepare and present a doctor’s testimony on the issue of causation and medical necessity of the medical bills, the judge ordered the costs sanction.
The cost award was for $1,200, said one of the plaintiff’s attorneys, who described the ruling as a warning to insurance defense lawyers who often stonewall with the idea of putting a plaintiff to her proof.
The case is Levister v. Shanahan. Judge Alfred D. Swersky decided the case without written opinion. His two page order awarding costs is available as VLW 097-8-377.
Necessity and causation
The case involved a car collision in Alexandria. In preparing for trial, the plaintiff sent out a number of requests for admission, including three which asked the defendant to admit that medical treatments were necessary, that they were caused by the crash and that they “were actually and reasonably incurred proximately because of the collision.”
The defendant gave a similar response to each of the three requests: “In the absence of testimony in support thereof [the request] is denied.”
Though the defendant prevailed in the case on a theory of contributory negligence, the plaintiff moved under Rule 4:12 (c) of the Rules of the Supreme Court of Virginia to recover the cost of having a doctor testify at trial as to the causation and necessity of medical bills.
Rule 4:12 (c) allows a party to seek costs if she proves a matter that her opponent failed to admit during discovery on a request for admission.
An award is mandatory under the rule unless the court finds (1) that the requests for admission were objectionable, (2) that they were of no substantial importance, (3) that the responding party had reasonable ground to believe she might prevail on the matter, or (4) that there was other good reason for the failure to admit.
No reasonable ground
The plaintiff’s lawyers, James C. Brincefield Jr. and Michael W. Tompkins of Alexandria, argued that none of the exceptions applied.
The defendant did not object to the requests at issue, they argued, and the subjects of those requests were of substantial importance because they dealt with matters, causation and medical necessity of medical bills, that were elements of their case in chief.
Brincefield and Tompkins also argued that the defendant “had no reasonable ground to believe she might prevail on the matter.”
The defense cross examined the doctor at trial and moved to strike his testimony, observed Brincefield and Tompkins, and the motion was denied. They pointed out, though, that the defendant “never otherwise contradicted [the doctor’s] testimony.”
The defendant “presented no evidence whatsoever to contradict causation and medical necessity of the bills,” Brincefield and Tompkins stated. “[I]n fact, defendant never designated any expert at all,” they argued.
They asserted that a “simple admission would have saved trial time, preparation time, and expert witness expense.”
The defendant responded by noting that her position all along was that the plaintiff “was not and could not have been injured in the subject motor vehicle accident.”
For support, the defendant turned to her response to, an interrogatory in which she set forth “the plaintiffs absence of complaints and absence of injuries at the scene.”
She also argued that the expert’s testimony was unnecessary because “the plaintiff knew, or should have known, that the defendant did not have any medical testimony to contradict the issues of medical necessity and causal relationship.”
The defendant added that “[t]he plaintiff’s testimony alone would have been sufficient to lay the foundation for the admissibility of the bills and that the bills were as a result of injury sustained in the subject motor vehicle accident.”
Win, lose or draw
Despite the defendant’s contentions, Swersky ordered the defendant to pay for the expert based on the denial of the requests for admission “without reasonable ground to believe she might prevail on the matter” and the fact that the plaintiff later proved those matters at trial.
Pursuing costs is a plaintiff’s only remedy against a common insurance defense tactic, according to Brincefield.
Insurance defense lawyers figure that the plaintiff will have to incur substantial costs to, bring in a doctor to testify, Brincefield said, and in small cases the plaintiff won’t have the doctor come in. But if the plaintiff forgoes the expert, the defense cuts the plaintiff to pieces on the stand, he said.
This motion is the only remedy for that kind of conduct, Brincefield said. “You get your costs win, lose or draw.”
Alexandria lawyer Alicia L. Summers represented the defendant on the motion for costs. She said she expects the decision to be appealed to the Supreme Court of Virginia.